same remedies on the testator's agreement, for a specific performance or otherwise, against the devisees or legatees, as might be had against the testator's successors, if the same had passed by succession. [C. L. § 2671*. Cal. Civ. C. 1301. 2756. Incumbrance not a revocation. A charge or incumbrance upon any estate for the purpose of securing the payment of money or the performance of any covenant or agreement, is not a revocation of any will relating to the same estate which was previously executed; but the devises and legacies therein contained must pass, subject to such charge or incumbrance. [C. L. § 2672. Cal. Civ. C. 1302. 2757. Partial disposal not a revocation. A conveyance, settlement, or other act of a testator, by which his interest in a thing previously disposed of by his will is altered but not wholly divested, is not a revocation; but the will passes the property which would otherwise devolve by succession. [C. L. § 2673. Cal. Civ. C. 1303. 2758. When conveyance is a revocation. If the instrument by which an alteration is made in the testator's interest in a thing previously disposed of by his will, expresses his intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the terms and nature of the testamentary disposition, it operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency by reason of which they do not take effect. [C. L. § 2674. Cal. Civ. C. 1304. 2759. Revocation revokes codicils. The revocation of a will revokes all its codicils. [C. L. § 2675. Cal. Civ. C. 1305. Whenever a 2760. After-born child not provided for to succeed. testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving such child unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, the child succeeds to the same portion of the testator's real and personal property that he would have succeeded to if the testator had died intestate. [C. L. § 2676. Cal. Civ. C. ¿ 1306. Posthumous child considered living at death of Posthumous child taking as one of a class, ? 2789. parent, 2846. 2761. Children unprovided for to succeed, when. When any testator omits to provide in his will for any of his children or for the issue of any deceased child, unless it appears that such omission was intentional, such child or the issue of such child must have the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section. [C. L. § 2677. Cal. Civ. C. 1307. Where a testator failed to provide in his will for one of his children, and the statute presumed that the omission was not intentional, such presump tion may be rebutted by extrinsic evidence whether of declarations of the testator or collateral facts. Coulam v. Doull, 4 U. 267; 9 P. 568. Affirmed, 133 U. S. 216. Atwood estate, 14 U. 1; 45 P. 1036. When any 2762. Share of child unprovided for, how assigned. share of the estate of a testator is assigned to a child born after the making of a will, or to a child or the issue of a child omitted in the will as hereinbefore mentioned, the same must first be taken from the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken from all the devisees or legatees, in proportion to the value they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest or other provision in the will, would thereby be defeated; in such case such specific devise, legacy, or provision may be exempted from such apportionment, and a different apportionment consistent with the intention of the testator may be adopted. [C. L. § 2678. Cal. Civ. C. 1308. 2763. Advancements under last three sections. If such children or their descendants so unprovided for had an equal proportion of the testator's estate bestowed on them in the testator's lifetime by way of advancement, they take nothing in virtue of the three preceding sections. [C. L. § 2679. Cal. Civ. C. 1309. Effect of advancements, ?? 2801, 2841-2845, 3955. 2764. When devisee dies before testator, descendants take. When any estate is devised to any child or other relation of the testator, and the devisee dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will in the same manner as the devisee would have done had he survived the testator. [C. L. § 2680. Cal. Civ. C. 1310. When death of devisee causes failure of devise, ?? 2793, 2794. Every 2765. Devise conveys all testator's estate. Exception. devise of land in any will conveys all the estate of the devisor therein which he could lawfully devise, unless it clearly appears by the will that he intended to convey a less estate. [C. L. § 2681. Cal. Civ. C. 21311. 2766. After-acquired property passes by will. Any estate, right, or interest in lands acquired by the testator after the making of his will, passes thereby and in like manner as if title thereto was vested in him at the time of making the will, unless the contrary manifestly appears by the will to have been the intention of the testator. Every will made in express terms, devising, or in any other terms denoting the intent of the testator to devise, all the real estate of such testator, passes all the real estate which such testator was entitled to devise at the time of his decease. [C. L. § 2682. Cal. Civ. C. 1312. Devise or bequest of all property, ¿ 2781. CHAPTER 2. INTERPRETATION OF WILLS. 2767. Testator's intention governs. A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible. [C. L. § 2683. Cal. Civ. C. 1317. 2768. Intention to be ascertained from will. In case of uncertainty arising upon the face of a will as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking in view the circumstances under which it was made exclusive of his oral declarations. [C. L. § 2684. Cal. Civ. C. 1318. Imperfect descriptions, etc., 2790. 2769. Interpretation governed by following rules. In interpreting a will subject to the law of this state, the rules prescribed by the following seetions of this chapter are to be observed unless an intention to the contrary clearly appears. [C. L. § 2685. Cal. Civ. C. 1319. 2770. Several wills to be construed together. Several testamentary instruments executed by the same testator, are to be taken and construed together as one instrument. [C. L. § 2686. Cal. Civ. C. 1320. 2771. Parts of will to be harmonized. All the parts of a will are to be construed in relation to each other and if possible so as to form one consistent whole; but where several parts are absolutely irreconcilable, the latter must prevail. [C. L. § 2687. Cal. Civ. C. 1321. 2772. Distinct devise not affected by inference. A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the will, or by an inaccurate recital of or reference to its contents in another part of the will. [C. L. § 2688. Cal. Civ. C. 1322. 2773. When ambiguous or doubtful. part of a will is ambiguous or doubtful, it may be thereto or recital thereof in another part of the will. Cal. Civ. C. 1323. Where the meaning of any explained by any reference [C. L. § 2689. 2774. Words taken in ordinary sense. The words of a will are to be taken in their ordinary and grammatical sense unless a clear intention to use them in another sense can be collected and that other can be ascertained. [C. L. § 2690. Cal. Civ. C. 1324. 2775. All provisions given effect, if possible. The words of a will are to receive an interpretation which will give to every expression some effect rather than one which will render any of the expressions inoperative. [C. L. $ 2691. Cal. Civ. C. 1325. 2776. Intestacy to be avoided. Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy. [C. L. § 2692. Cal. Civ. C. 1326. 2777. Technical words. Construction. Technical words in a will are to be taken in their technical sense unless the context clearly indicates a contrary intention. [C. L. § 2693. Cal. Civ. C. 1327. 2778. Id. Unnecessary. Technical words are not necessary to give effect to any species of disposition by will. [C. L. § 2694. Cal. Civ. C. 1328. 2779. Certain words not necessary to pass fee. The term "heirs," or other words of inheritance, are not requisite to devise a fee, and a devise of real property passes all the estate of the testator, unless otherwise limited. [C. L. $2695. Cal. Civ. C. 1329. Word "heir" not necessary to transfer a fee, 1970. 2780. Property embraced in power passes by will. Real or personal property embraced in a power to devise passes by a will purporting to devise all the real or personal property of the testator. [C. L. § 2696. Cal. Civ. C. 1330. Devise passing after-acquired property, etc., 22766. 2781. When all testator's property passes. A devise or bequest of all the testator's real or personal property in express terms or in any other terms denoting his intent to dispose of all his real and personal property, passes all the real or personal property which he was entitled to dispose of by will at the time of his death. [C. L. § 2697. Cal. Civ. C. 21331. 2782. Residuary clause. Real property. A devise of the residue of the testator's real property passes all the real property which he was entitled to devise at the time of his death not otherwise effectually devised by his will. [C. L. § 2698. Cal. Civ. C. 1332. 2783. Id. Personal property. A bequest of the residue of the testa tor's personal property passes all the personal property which he was entitled to bequeath at the time of his death not otherwise effectually bequeathed by his will. [C. L. § 2699. Cal. Civ. C. 1333. 97 66 2784. Testamentary disposition to "heirs," "relations," etc., how construed. A testamentary disposition to "heirs," "relations," "nearest relations,' "representatives," "legal representatives," or "personal representatives," or "family," " "issue," "descendants," "nearest or "next of kin,' of any person, without other words of qualification, and when the terms are used as words of donation, and not of limitation, vests the property in those who would be entitled to succeed to the property of such person, according to the provisions on succession in this title. [C. L. § 2700. Cal. Civ. C. 1334. Word "heir" not necessary to devise a fee, 2779. 2785. Id. Are words of donation, not limitation. The terms mentioned in the last section are used as words of donation, and not of limitation. when the property is given to the person so designated directly, and not as a qualification of an estate given to the ancestor of such person. [C. L. § 2701. Cal. Civ. C. 1335. 2786. Words referring to death or survivorship. Words in a will referring to death or survivorship, simply relate to the time of the testator's death, unless possession is actually postponed, when they must be referred to the time of possession. [C. L. § 2702. Cal. Civ. C. 1336. 2787. Devise to a class, includes whom. A testamentary disposition to a class includes every person answering the description at the testator's death: but when the possession is postponed to a future period, it includes also all persons coming within the description before the time to which possession is postponed. [C. L. § 2703. Cal. Civ. C. 1337. 2788. When realty deemed personalty. When a will directs the conversion of real property into money, such property and all its proceeds must be deemed personal property from the time of the testator's death. [C. L. § 2704. Cal. Civ. C. 1338. 2789. Unborn child. A child conceived before, but not born until after a testator's death, or any other period when a disposition to a class vests in right or in possession, takes, if answering to the description of the class. [C. L. $2705. Cal. Civ. C. 1339. Succession of posthumous child, 2760. 2790. Correction of imperfect description. When applying a will it is found that there is an imperfect description, or that no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence; but evidence of the declarations of the testator as to his intentions cannot be received. [C. L. § 2706. Cal. Civ. C. 21340. Intention ascertained from words of will, 276. 2791. When devises and bequests vest. Testamentary dispositions. including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death. [C. L. § 2707. Cal. Civ. C. 1341. Legacies and annuities due, when, 2814–2816. 2792. Id. When divested. A testamentary disposition, when vested, cannot be divested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose. [C. L. § 2708. Cal. Civ. C. 1342. 2793. Death of devisee before testator. If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails. unless an intention appears to substitute some other in his place, except as provided in section twenty-seven hundred and sixty-four. [C. L. § 2709. Cal. Civ. C. ? 1343. 2794. Interest in remainder not affected. The death of a devisee or legatee of a limited interest before the testator's death does not defeat the interest of persons in remainder, who survive the testator. [C. L. § 2710. Cal. Civ. C. 1344. 2795. Conditional disposition. A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated. [C. L. § 2711. Cal. Civ. C. 1345. Conditional will deemed probate, when, 2 2741. 2796. Condition precedent. A condition precedent in a will is one which is required to be fulfilled before a particular disposition takes effect. L. § 2712. Cal. Civ. C. ? 1346. [C. 2797. Id. When property vests. Where a testamentary disposition is made upon a condition precedent, nothing vests until the condition is fulfilled, except where such fulfillment is impossible, in which case the disposition vests, unless the condition was the sole motive thereof, and the impossibility was unknown to the testator, or arose from an unavoidable event subsequent to the execution of the will. [C. L. § 2713. Cal. Civ. C. 1347. 2798. Id. When deemed performed. A condition precedent in a will is to be deemed performed when the testator's intention has been substantially though not literally complied with. [C. L. § 2714. Cal. Civ. C. 1348. 2799. Condition subsequent. A condition subsequent is where an estate or interest is so given as to vest immediately, subject only to be divested by some subsequent act or event. [C. L. § 2715. Cal. Civ. C. 1349. 2800. Devise to several. Owners in common. A devise or legacy given to more than one person vests in them as owners in common. [C. L. § 2716. 2801. Advancements, when ademptions. Advancements or gifts are not to be taken as ademptions of general legacies, unless such intention is expressed by the testator in writing. [C. L. § 2717. Cal. Civ. C. 41351. Advancements, 22 2763, 2841 2845, 3955. CHAPTER 3. GENERAL PROVISIONS. 2802. Legacies classified. Legacies are distinguised and designated according to their nature, as follows: 1. A legacy of a particular thing, specified and distinguished from all others of the same kind belonging to the testator, is specific; if such legacy fails, resort cannot be had to the other property of the testator. 2. A legacy is demonstrative when the particular fund or personal property is pointed out from which it is to be taken or paid; if such fund or property fails. in whole or in part, resort may be had to the general assets, as in case of a general legacy. |